A HIPAA Waiver: Do I Need One?

It has happened to all of us. You make a visit to the doctor’s office and while checking in, the receptionist asks you to read and sign something about HIPAA. HIPAA? You came in for fever and a sore throat, your hip feels just fine, thank you very much. So what is the receptionist talking about? HIPAA stands for the Health Insurance Portability and Accountability Act of 1996.

It is a federal law that protects the security and privacy of patients’ health information. In a day and age where more and more correspondence is done electronically, protecting the patient’s privacy is very important. However, there are times when keeping your information private can get in the way of your health. In situations like these, it is helpful to have a signed HIPAA waiver. A waiver is a form that gives consent for specifically named individuals to have access to your medical information. Allowing a few trusted individuals such as your family members, your attorney, a new physician from whom you are receiving treatment, and even researchers could be of great benefit to you in certain circumstances.

For example, let’s say that you have created an estate plan that included a HIPAA waiver and Medical Powers of Attorney designating your spouse first and then your adult children. Your spouse also has similar documents. Now imagine this scenario: your spouse has been dealing with chronic pain for years and now has started a new treatment plan involving a different type of medication. The medication alters your spouse’s personality and has made them confrontational. What do you do? Because of the HIPAA waiver that was signed that grants you access to your spouse’s records, you can call the doctor and discuss the situation with him and see if there are any adverse side effects or interactions with other medications. The doctor discovers that there is an adverse interaction and adjusts the medication. In no time at all, your spouse is back to the loving, happy person you know them to be.

This situation would have ended up much differently if there wasn’t a waiver signed granting you access. When you call the doctor and try to discuss the situation with her, she is legally bound to keep that information private and she cannot discuss with you the types of medication taken or the medical history. Both you and the doctor are frustrated, but there is nothing either of you can do. You are stuck trying to convince your spouse to talk to the doctor about the problem. Unfortunately, that seems unlikely as your spouse does not see that there is an issue and only views you as being difficult or nosy.

Another situation that may call for a HIPAA waiver is if you have retained an attorney to assist you with an issue with your medical care. Legally, the attorney cannot access your medical records, thus severely restricting his ability to help you with your situation. For example, you have suffered a stroke that has incapacitated you. If you had signed a HIPAA waiver granting your attorney access to your medical records, he could quickly and completely access your medical records, thus expediting his ability to establish a guardianship for your benefit if required. Alternatively, if an individual were wrongfully seeking to establish a guardianship or conservatorship over your objections, your attorney could discuss with your medical professionals whether such court protection was indeed required and build a case to preserve your independence if doing so was in your best interest.

Switching to a new physician is another situation where having a HIPAA waiver would be helpful. The new physician needs to have a waiver in order to have access to the patient’s medical files from the previous doctor. After all, it is important that your new doctor understand your previous health issues if you want her to treat you effectively.

Likewise, if you participate in a research study (which may provide valuable treatments not otherwise available), a waiver is often required. The researcher needs to be able to evaluate the medical histories of the people participating in the study. If the person is unwilling or unable to sign a waiver at the inception of the study, and a general HIPAA waiver has not already been signed allowing such access, that person is often dropped from the study.

As you can see, although the protection of your privacy is frequently desirable and necessary, there are times when it is beneficial to allow certain people access to your medical records. One of the most important reasons for creating an estate plan is to plan for the future and to take care of your loved ones. By allowing certain people to have access to your medical records, you give them a peace of mind knowing that if anything happens to you, they will have the ability to help if they are able. If you have any questions about whether or not your estate planning should include HIPAA waivers, contact an attorney who is familiar with these issues and can advise you and your family on these important matters. 

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